Foreign lawyers practising national law: temporary counsel in small jurisdictions

Temporary licensing of foreign counsel is not necessarily limited to small jurisdictions, but it is an important, and contested, part of the legal landscape in many small jurisdictions. Small jurisdictions, with small national Bars, face particular problems concerning capacity to practise national law. As this paper shows, small national Bars may simply be running at capacity, or beyond, when a case comes along, the small size meaning a relatively small spike of demand can exhaust spare capacity. Alternatively, perhaps particularly if the national legal profession is a unified one, individual legal practitioners may experience a similar problem of capacity, with none prepared to take on a case which will dominate their working life to the detriment of other cases and other clients. On a different point, dealing with conflicts of interest within a small professional community is an ongoing problem for small jurisdictions. Finally, a small Bar may be too small to support specialist counsel with particular expertise in a particular field of national law.

This article explores the issue of temporary counsel in small jurisdictions through an in-depth case study of licensing in one small jurisdiction, that of the Isle of Man. The topic is approached through a range of methods. Doctrinal legal analysis, drawing particularly on relevant Manx statute, regulation and case-law, is supplemented by historical archival analysis; a detailed analysis of the 468 licences granted in the Isle of Man; and qualitative interviews with a selection of key actors. This study shows a pattern of acclimatisation to the licensing of foreign counsel in the Isle of Man since 1969, the juridification of the process of licensing since 1995, the development of an offshore Manx Bar, and the challenges the licensing system poses to the Manxness of Manx legal proceedings.

Moving beyond the Isle of Man, the paper argues that the national Bar of a small jurisdiction has constitutional significance, and that the impact of a substantially employed licensing scheme can be important in determining the shape of this national Bar. It concludes with a call for a comparative study of temporary counsel in small jurisdictions, taking into account the transnational legal context; and for a fuller consideration of a possible offshore offshore Bar as contributing to a continued relationship between common law jurisdictions in a post-colonial context.